Shaughnessy Amended Complaint

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

1:18-cv-00461
MICHAEL SHAUGHNESSY, )
)
Plaintiff, )
) AMENDED COMPLAINT
v. )
)
DUKE UNIVERSITY, PRIVATE )
DIAGNOSTIC CLINIC, PLLC, )
)
Defendants. )
)
)
)
PRELIMINARY STATEMENT
Dr. Michael Shaughnessy was an exemplary physician and anesthesiologist at Duke University
whose seven-year career at Duke was cut short in retaliation and discrimination against his
complaints about disability and sex discrimination in Duke’s Anesthesiology Department. Dr.
Shaughnessy consistently earned high performance ratings and professional accolades
throughout his years at Duke. However, in mid- to late 2016, following the tragic suicide of a
resident physician within Duke’s Anesthesiology Department, Dr. Shaughnessy and others
complained about the insensitive response and stubborn refusal to support those with mental
health disabilities, and, additionally, the sex discrimination leveled against many female
physicians in the Anesthesiology Department by its Chair, Dr. Joseph Mathew, and other
members of the faculty management, including Vice Chair Dr. Gavin Martin. In response to Dr.
Shaughnessy’s engagement in protected activity, Duke refused to renew Dr. Shaughnessy’s
contract, and, in so doing, Duke breached from numerous material terms and procedural
Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 1 of 33

requirements encompassed within its contract with Dr. Shaughnessy, including Duke’s
contractual promise (1) that Dr. Shaughnessy’s contract would be renewed on a continuing
annual basis, subject to satisfactory annual performance and programmatic needs; (2) that Dr.
Shaughnessy was able to act and speak without institutional censorship or discipline, and (3) that
Duke would abide by a fair and transparent process for contract renewal determinations as set
forth in the Duke University Faculty Handbook, inter alia. Moreover, following Duke’s decision
to end Dr. Shaughnessy’s employment, Duke blocked his employment with other healthcare
institutions and hospitals including UNC, the Durham VA, and Duke Regional Hospital. This is
a civil rights lawsuit seeking both compensatory and punitive damages, inter alia, for the willful
discrimination and retaliation perpetrated by Defendants in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., the ADA Amendments Act of
2008 (“ADAAA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-3, and against
the Defendants for breach of contract and torts committed under the common law of the State of
North Carolina.
THE PARTIES
1. At all times relevant to this Complaint, Plaintiff Michael Shaughnessy, M.D., has been a
citizen and resident of Wake County, North Carolina. Dr. Shaughnessy was an "employee" of
Defendant within the meaning of the common law and within the definition of the ADA, 42
U.S.C. § 12112, et seq. At all times relevant to this Complaint, Dr. Shaughnessy was a person
with a disability under the ADA and ADAAA.
2. At all times relevant to this Complaint, Defendant Duke University (“Duke”) has been a non-
profit corporation organized and existing under the laws of the State of North Carolina with
its principal place of business at 310 Blackwell Street, Fourth Floor, Durham, North Carolina

27701. At all times relevant to this Complaint, Duke did business in the State of North
Carolina and was the employer of Dr. Shaughnessy within the meaning of the common law of
the State of North Carolina and in accord with the definition of “employer” under the ADA.
At all times relevant to this Complaint, Duke regularly employed more than 500 employees.
3. At all times relevant to this Complaint, Defendant Private Diagnostic Clinic, PLLC (“PDC”),
has been a professional limited liability company organized and existing under the laws of the
State of North Carolina with its registered office on Trent Drive in Durham, North Carolina
27710. At all times relevant to this Complaint, PDC did business in the State of North
Carolina and was the employer of Dr. Shaughnessy within the meaning of the common law of
the State of North Carolina, and in accord with the definition of “employer” under the ADA.
At all times relevant to this Complaint, PDC regularly employed more than 500 employees.
PDC is a company affiliated with Duke and controlled by Duke. Hereinafter, references to
“Duke” shall encompass both Duke and PDC unless otherwise specified.
JURISDICTION AND VENUE
4. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331
as certain of Dr. Shaughnessy’s causes of action arise under the laws of the United States.
This Court has supplemental jurisdiction over the subject matter of Dr. Shaughnessy’s claims
arising under the laws of the State of North Carolina pursuant to 28 U.S.C. § 1367 as such
claims form the same case or controversy as those claims arising under the laws of the United
States.
5. Venue is proper in the United States District Court for the Middle District of North Carolina
under 28 U.S.C. § 1391(b)(1) and (b)(2), inasmuch as Duke resides within this judicial district
and a substantial part of the events or omissions giving rise to the following claims occurred

within this judicial district.
FACTS
6. Dr. Shaughnessy is an anesthesiologist and physician licensed to practice medicine in the
State of North Carolina. Dr. Shaughnessy holds an undergraduate degree from Princeton
University and earned his medical degree from Duke University Medical School in 2006. Dr.
Shaughnessy performed his residency in Anesthesiology at Massachusetts General Hospital
until 2010. Dr. Shaughnessy obtained fellowship training at Duke, serving as a faculty fellow
in Regional and Ambulatory Anesthesiology from 2010-2011. Dr. Shaughnessy has long-
standing ties to Duke: he was born in Duke University Hospital, grew up in Durham, North
Carolina, on and around Duke’s campus, and his father remains a tenured full professor at
Duke.
Dr. Shaughnessy’s Contracts with Duke
7. On or about April 13, 2011, Dr. Shaughnessy was presented with an offer letter (“Offer
Letter”), offering Dr. Shaughnessy an appointment as a full-time faculty member in Duke’s
Department of Anesthesiology (hereinafter “the Department”) housed within the Duke School
of Medicine. The Offer Letter provided that, if he accepted the same, Dr. Shaughnessy would
be hired into a regular non-tenure track faculty position in the Department as Assistant
Professor, Track IV.
8. The Offer Letter required that, as part of the proposed contract, Dr. Shaughnessy was required
to “execute the PDC Operating Agreement and related documents[,]” which were presented to
Dr. Shaughnessy along with the Offer Letter. The related documents included a document
entitled “Exhibit A”, setting forth specific information regarding Dr. Shaughnessy’s
compensation, as well as a schedule of “Terms and Conditions” (hereinafter “Terms and

Conditions Schedule”), setting forth additional material terms of the proposed contract.
9. Moreover, the Offer Letter “summarized” an enumerated list of “[d]etails of the offer . . .”,
which represented additional material elements of the proposed contract between the parties.
Included within the details section, the Offer Letter incorporated by reference the
aforementioned Terms and Conditions Schedule, which the Offer Letter identified as being
attached thereto.
10. The Terms and Conditions Schedule, attached to the Offer Letter and incorporated by
reference therein, established a number of material terms of Dr. Shaughnessy’s employment
with Duke, which represented a proposed binding contract between the parties, including:
a. Dr. Shaughnessy’s “Appointment Term” was described as follows: “Your
appointment will be renewed on a continuing annual basis, subject to satisfactory
annual performance and programmatic needs.” Accordingly, Duke offered Dr.
Shaughnessy a contract which was to be continually renewed, but provided Duke the
option not to do so, if Duke determined that Dr. Shaughnessy did not establish
satisfactory annual performance or if Duke’s programmatic needs precluded the need
for Dr. Shaughnessy’s continued employment; and
b. The Terms and Conditions Schedule further provided that the Duke Faculty
Handbook (“DFH”), including any amendments thereto, was a material component of
Dr. Shaughnessy’s contract with Duke. The Terms and Conditions Schedule
established that he was subject to the same DFH and included a Uniform Resource
Locater (“URL”), which navigated to a webpage where a copy of the same DFH
could be found. Accordingly, Duke established that the policies set forth in the DFH,
as amended from time to time, were material terms in its contract with Dr.

Shaughnessy.
11. The Offer Letter was drafted by Duke and bore the name of Dr. Mark Newman, then
Chair of the Department of Anesthesiology, acting as an authorized agent on behalf of Duke
in extending the aforementioned offer.
12. On or about May 3, 2011, under the text of the Offer Letter which stated, “I accept this
offer . . . [,]” Dr. Shaughnessy signed and dated the Offer Letter, manifesting his assent to the
same and with the intention that the Offer Letter and related documents, including Exhibit A
and the Terms and Conditions Schedule, would become a binding contract between the
himself and Duke.
13. Prior to affixing his signature, Dr. Shaughnessy made handwritten notations in both the
Offer Letter and the Terms and Conditions Schedule attached thereto, which represented
proposed modifications to the contract. Dr. Shaughnessy affixed his initials to the same to
identify his assent to those documents, as amended by his notations. Namely, Dr.
Shaughnessy’s proposed modifications amended the following:
a. Under details section of the Offer Letter, Dr. Shaughnessy added an additional
paragraph, numbered by Dr. Shaughnessy as paragraph nine, to clarify that the
housing assistance referenced in Exhibit A was incorporated into the Offer Letter by
reference. Dr. Shaughnessy affixed his initials to the Offer Letter; and
b. Under the Terms and Conditions Schedule, Dr. Shaughnessy added a caveat that a
non-compete agreement required by the Terms & Conditions Schedule would be
“mutually agreed upon.” Dr. Shaughnessy affixed his initials to the Terms and
Conditions Schedule.
14. Dr. Shaughnessy returned a copy of the same Offer Letter, Exhibit A, and Terms and

Conditions Schedule to the designated individual at Duke according to the terms of the
contract.
15. Duke accepted Dr. Shaughnessy’s signed Offer Letter and Terms and Conditions
Schedule, and assented to the modifications he made therein. Accordingly, the Offer Letter
and the Terms and Conditions Schedule became a binding and enforceable contract between
the parties.
16. Dr. Shaughnessy fully complied with the obligations he assumed in his contract with
Duke throughout his period of employment.
17. Moreover, Dr. Shaughnessy maintained satisfactory annual performance throughout the
duration of his employment with Duke.
18. At all times relevant to this Complaint, Duke did not experience a change in
programmatic needs such that it precluded Dr. Shaughnessy’s continued employment.
19. Although Dr. Shaughnessy worked under contract with Duke, he was also simultaneously
employed with PDC as an at-will employee of the same until his wrongful termination on or
about June 30, 2017.
20. Dr. Shaughnessy’s Track IV classification designated him as a regular, non-tenure track
faculty member within Duke’s School of Medicine, entitling him to the benefits accorded that
rank within the DFH.
21. Under the DFH, the terms of which were expressly incorporated into Dr. Shaughnessy’s
contract with Duke, as described above, Dr. Shaughnessy was entitled to certain rights
respecting his employment relationship with Duke. These rights included those stated in
Appendix C of the DFH, which in relevant part defines itself as “embody[ing] and agreement
between the president and the faculty as to policies and procedures with respect to academic

freedom, academic tenure, and certain matters of due process.” The relevant promises made
by Duke and applicable to Dr. Shaughnessy include, inter alia:
a. Appendix C provided Duke’s promise to its faculty that they will be afforded
academic freedom in their employment with the same. Namely, Duke promised that
Duke faculty have academic freedom “[t]o act and to speak in his or her capacity as a
citizen without institutional censorship or discipline”; and
b. Appendix C provided that Dr. Shaughnessy was entitled to a system of due process
surrounding the decision to offer reappointment of his contract, including (1) the
establishment of an objective criteria for reviewing Dr. Shaughnessy’s candidacy for
reappointment (i.e., the rubric by which satisfactory performance would be
measured); (2) providing Dr. Shaughnessy with access to the aforementioned criteria;
(3) review of Dr. Shaughnessy’s performance against the aforementioned criteria by a
review committee of at least three faculty members not including the Chair of the
Department unless approved by the Dean of the School of Medicine; (4) that the
review committee would prepare a dossier of Dr. Shaughnessy’ curriculum vitae and
relevant documents and develop a written report to the Department regarding Dr.
Shaughnessy; and (5) the decision to reappoint Dr. Shaughnessy was to be made by
secret ballot at a meeting of the Department, and that the Chair was not permitted to
vote except in the case of a tie; inter alia.
22. Duke promulgated the Duke Faculty Handbook in order to represent the various benefits
and obligations existing between Duke and its faculty in their employment relationship, inter
alia.
23. Included in the benefits set out in the Duke Faculty Handbook, Duke promised its faculty

that it would provide and protect certain rights with respect to faculty employment with Duke,
including the rights to academic freedom and due process in reappointment decisions
described in Paragraph 21.
24. Duke promulgated the Duke Faculty Handbook with knowledge that Duke faculty would
take Duke at its word and would rely upon Duke’s representations that those benefits would
be provided to Duke faculty as stated therein.
25. At the time Duke promulgated the Duke Faculty Handbook, it was reasonably
foreseeable to Duke that Duke faculty would take Duke at its word and would rely upon
Duke’s representations that those benefits would be provided to Duke faculty as stated
therein.
26. Duke promulgated the Duke Faculty Handbook with the intention that Duke would be
bound by the promises it made to its faculty therein, including the intention to be bound by its
commitment to provide academic freedom to Duke faculty and to due process in
reappointment decisions described in Paragraph 21.
27. Following Dr. Shaughnessy’s initial contract with Duke, Duke continually renewed the
same contract, carrying forward the previously agreed-upon material terms identified above
until Chair Mathew improperly terminated Dr. Shaughnessy’s contract in January 2017.
Dr. Shaughnessy’s Performance and Accomplishments at Duke
28. Throughout his employment with Duke, Dr. Shaughnessy maintained an exemplary
record of performance in his provision of care to patients and developed an excellent
relationship with medical students, residents, fellows, CRNA’s, attending surgeons and
consultants, nurses, anesthesia technicians and staff within Duke University Hospital.
29. In early 2017, Dr. Shaughnessy was nominated by formal letter by at least five of his

faculty peers, including four attending surgeons and an attending anesthesiologist in his
Department, to receive a professionalism award by the Duke School of Medicine for his
actions as a physician and member of the Duke medical community. These letters detailed Dr.
Shaughnessy’s tireless patient advocacy as well as his excellent clinical skills and rapport
with his colleagues. Moreover, upon information and belief, one or more letters detailed Dr.
Shaughnessy’s commitment to, and exemplary teaching of, numerous 18-Delta Special Forces
Medics rotating through Duke as part of their Medical Proficiency Training (MPT) in support
of the United States Armed Forces’ efforts to improve battlefield medicine. As a result of the
strength of these nominations, Dr. Shaughnessy was recognized by the Dean of Faculty as a
“Distinguished Nominee” in the program of the 2017 Duke Annual Spring Faculty Meeting.
30. Moreover, on or about March 9, 2017, Dr. Shaughnessy was elected by secret ballot to
serve a two-year term as a member of Duke’s Academic Council at Duke. Dr. Shaughnessy
received numerous votes from Duke faculty colleagues across Duke Medical Center to obtain
this position. The Academic Council is a prestigious body and the chief instrument of faculty
governance at Duke.
31. Dr. Shaughnessy received raises in each of the six years he worked at Duke along with
elevated levels of responsibility. Up until December 2016, Dr. Shaughnessy’s performance
had been semi-annually rewarded by the payment of substantial profit-sharing bonuses
(known as “gain share”) distributed to him through PDC.
32. During Dr. Shaughnessy’s employment with Duke, he spent approximately 80 percent of
his working time attending to clinical responsibilities and devoted the remaining 20 percent of
his time to research, training, and education of medical students and residents.
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Disability and Sex Discrimination at Duke
33. At all times relevant to this Complaint, Dr. Shaughnessy has been a person with a
disability. Namely, Dr. Shaughnessy has suffered from a congenital complete heart block that
has required the implantation of a permanent cardiac pacemaker to treat the same disability. In
addition, Dr. Shaughnessy has had a history of major depression as well as rosacea (causing a
reddening of the skin). Dr. Shaughnessy has received intensive Cognitive Behavioral Therapy
(CBT)-based counseling and medication to treat his depression. Dr. Shaughnessy’s rosacea
has required specialized medication management and laser treatments to control symptoms.
He has received all of his medical care for these conditions at Duke.
34. When he began his faculty position, Dr. Shaughnessy requested an accommodation for
his congenital heart block from Duke. This became of specific importance in 2013 with the
opening of new operating rooms (hereinafter “OR”) containing MRI scanners. Dr.
Shaughnessy reinforced written notification of this accommodation numerous times between
2013 and 2014. Specifically, then-Vice Chair Dr. Holly Muir and Dr. Gavin Martin granted
Dr. Shaughnessy’s request not to work on cases involving the use of Magnetic Residence
Imaging (MRI) machinery both in the OR and offsite due to the potential that machine has to
interfere with the normal operation of his pacemaker which would be life-threatening to him.
35. During Dr. Shaughnessy’s employment with Duke, the Chair of the Department, Dr.
Joseph Mathew (male, no known disability) (hereinafter “Chair Mathew”), in addition to
other members of the Department’s leadership including Division Chief Dr. Jeffrey Gadsden
(male, no known disability), and Vice Chair Dr. Gavin Martin (male, no known disability),
were aware of Dr. Shaughnessy’s disability, his history of disability, and its treatment. Dr.
Shaughnessy was regarded by the foregoing as having a disability.
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36. During Dr. Shaughnessy’s employment, following Chair Mathew’s accession to the role
of interim Chair of the Department in 2014, Dr. Shaughnessy observed Chair Mathew’s
repeated harassment and discrimination against women and people with disabilities.
37. For example, Chair Mathew discriminated and retaliated against a member of the
Department, Dr. Cheryl Jones. Dr. Jones was an outspoken advocate for the rights of women
and the disabled and was herself a person with a disability. Namely, Dr. Jones suffered from
depression. In September 2015, a female employee was assaulted by a male at Duke
University Hospital and found beaten and unconscious in a bathroom. Chair Mathew
downplayed the incident because he believed that because the woman was not sexually
assaulted, the incident was not serious. Female members of the Hospital staff, including Dr.
Jones, wrote emails to Chair Mathew about the need to make female employees of the
Hospital aware of the assault because the assailant had not been captured. Upon information
and belief, Chair Mathew reprimanded Dr. Jones for participating in a warning to female
employees about the assault. After this incident, Chair Mathew stripped Dr. Jones of her
administrative assistant, Bridgette White. Less than a year later after this incident, Dr. Jones
would be forced out of Duke by Chair Mathew.
38. Moreover, numerous other female physicians have experienced hostile and harassing
behaviors from Chair Mathew and have been pushed out of their positions at Duke by the
same.
39. In May or June 2016, a female anesthesiology resident at Duke who had a disability
committed suicide (hereinafter “the Resident”). The Resident had been exhibiting symptoms
of depression during her stressful second year of residency.
40. Following the Resident’s tragic death, Duke faculty were greatly shaken and upset. Chair
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Mathew called a faculty meeting to discuss his position that Duke had done nothing wrong in
the events leading up to the Resident’s death. Dr. Jones complained in that meeting that Duke
was being insensitive by focusing on its own liability for the Resident’s death rather than
critically assessing how it can prevent future tragedies stemming from depression. Dr. Jones
advocated for talking with others who may be exhibiting signs of depression and related her
own experience with depression. Dr. Jones said that as a Department, Duke had failed in its
obligation to offer help to the Resident. Chair Mathew warned the faculty in this meeting that
they should not discuss these events at all because of his concern about the Department’s legal
liability. Chair Mathew appeared very angry at Dr. Jones’ comments.
41. Thereafter, Dr. Jones got together with a group of residents in order to offer support in
the aftermath of the Resident’s suicide. When Chair Mathew learned of this, he held another
faculty meeting and declared that the Department’s faculty were not permitted to gather with
residents without the approval of the Residency Program Director. Dr. Jones was also
prohibited from organizing a candlelight vigil to mourn the Resident’s death.
42. After Dr. Jones was blocked from organizing a candlelight vigil, she purchased a series of
books entitled Physician Suicide Letters Answered, written by the renowned physician and
scholar, Pamela Wible, M.D. Dr. Jones attempted to charge this purchase to her faculty
discretionary spending account (hereinafter “FDA Account”) provided to her by Duke.
However, she was denied the use of the account to pay for the books. She had never before
been denied use of her discretionary account. Nonetheless, Dr. Jones purchased these books
with her own funds and placed them on a shelf in the Obstetric Anesthesia work room.
43. Upon information and belief, acting upon the orders of Chair Mathew, Executive Vice
Chair Dr. Sol Aronson, and Division Chief Ashraf Habib met with Dr. Jones in Dr. Habib’s
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office and told her that she was not allowed to distribute the books to residents. In that
meeting, Dr. Aronson harangued Dr. Jones for placing the books in the Obstetric Anesthesia
work room and as Dr. Jones attempted to leave the office, Dr. Aronson positioned himself in
the doorway and physically blocked Dr. Jones from leaving.
44. Following this incident, Dr. Jones sent an email to the entire Department relating what
had occurred with the books and Dr. Aronson’s aggressive behavior in detaining her in Dr.
Habib’s office against her will.
Dr. Shaughnessy’s Exercise of Protected Activity and Subsequent Retaliation
45. Dr. Shaughnessy read the email from Dr. Jones and became very concerned by the
apparent mistreatment of Dr. Jones and the discriminatory behavior evidenced by Duke
against those with a disability. On or about early August 2016, Dr. Shaughnessy met
individually with former Vice Chair and Division Chief Dr. Richard Moon, then-Division
Chief for General/Vascular/Transplant Dr. Tim Miller, and then-Division Chief Gavin Martin.
Dr. Shaughnessy stated to each of these individuals that based upon the email from Dr. Jones,
what he had witnessed from Chair Mathew in the faculty meeting following the Resident’s
death, Dr. Jones’ complaints in that same meeting, and the aggressive and hostile response to
her attempts to provide literature that may be helpful to those suffering from depression, Dr.
Shaughnessy had serious concerns about Duke’s mistreatment of Dr. Jones and hostility
towards those suffering from depression. During the conversations with those three
individuals, Dr. Shaughnessy referenced his own struggle with depression and requested that
Drs. Moon, Miller and Martin relay and echo his concerns to Chair Mathew about Dr. Jones’
mistreatment and encouraged them as mentors and administrators to likewise complain about
the overall response to the Resident’s suicide stemming from her disability. Upon information
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and belief, on or about early August 2016, Dr. Miller and Dr. Moon, complained to Chair
Mathew about the foregoing events.
46. A few weeks later, in August 2016, Dr. Jones went out on disability leave and then
subsequently ended her employment with Duke by resignation. Upon information and belief,
the harassment and retaliation she had received from Chair Mathew and Dr. Aronson caused
her to feel compelled to resign her faculty position while on leave on or about October 2016.
47. On or about October 19, 2016, Chair Mathew then called a meeting with Dr.
Shaughnessy’s division in order to discuss “recent departmental events”, such as the
Resident’s suicide, the email sent by Dr. Jones, and the events leading to Dr. Jones’
resignation. Chair Mathew announced that he wished to have this meeting ahead of resident
application season so that everyone was “on the same page” regarding how to behave towards
resident applicants. In this meeting, Chair Mathew expressed his disdain for Dr. Jones and her
disability and attributed her actions to mental illness. Chair Mathew then instructed those
present to inform applicants for the residence program that the Resident had committed
suicide because she had a drug problem. Chair Mathew did not want any discussion about the
Resident’s depression.
48. In this meeting, Dr. Shaughnessy objected to Chair Mathew’s instruction to characterize
the Resident’s death as attributable to drugs. Dr. Shaughnessy stated that the Resident clearly
had a disability and to besmirch her death by saying it was attributable to drugs was
inappropriate. Dr. Shaughnessy then referenced his own struggle with depression. Dr.
Shaughnessy asked Chair Mathew whether there would be consequences for Dr. Aronson’s
threatening behavior towards Dr. Jones when he met with her to discuss the books in Dr.
Habib’s office. Chair Mathew responded that despite exercising poor judgement in that
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meeting, Dr. Aronson was a very important member of the Department and accordingly
would not be reprimanded and that Dr. Aronson was considering suing Dr. Jones for her
statements.
49. Dr. Shaughnessy stated to Chair Mathew that Dr. Jones was a valuable member of
Duke’s faculty and the Department needed to accommodate Dr. Jones and help her work
through her disability. Chair Mathew stated that Dr. Jones has a mental illness. Dr.
Shaughnessy responded that the Department should explore how to find a way for Dr. Jones
to return from her medical leave by determining whether accommodations are available. Chair
Mathew snapped at Dr. Shaughnessy, stating, “She will never want to come back.” Chair
Mathew appeared angry at him for voicing his complaints about Dr. Jones.
50. Shortly following the October 19, 2016 meeting, Chair Mathew confronted Dr.
Shaughnessy and said that he believed Dr. Shaughnessy was not happy with his presentations
and about the instructions he had given. Dr. Shaughnessy complained to Chair Mathew about
his treatment of Dr. Jones. Chair Mathew responded dismissively that Cheryl Jones was
simply wrong and she should have known better than to act the way she did.
51. A few weeks later, in late October or early November 2016, Vice Chair Martin
confronted Dr. Shaughnessy and threatened him, warning that he should not, “rile up the
troops,” and telling Dr. Shaughnessy that he seemed unhappy. Vice Chair Martin warned that
Chair Mathew might see to it that Dr. Shaughnessy’s contract might not be renewed.
52. During this time period, with prior permission from then-Vice Chair Dr. Holly Muir and
then-Division Chief Martin obtained on or around August 29, 2016, Dr. Shaughnessy had
been seeking an internal practice transition to Duke Regional Hospital and to enter into a
contract of employment with Regional Anesthesia, PLLC (“Regional Anesthesia”). Regional
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Anesthesia holds a contract with Duke to perform anesthesia services at Duke Regional
Hospital in addition to other Duke-affiliated and unaffiliated locations in the Triangle area.
Physicians at Regional Anesthesia have identical, continuing appointments on the Duke
faculty and there is a close relationship between Regional Anesthesia and Duke. In fact,
Regional Anesthesia is considered the Community Division of the Department with Dr. Eddie
Sanders as the Division Chief. Upon information and belief, Regional Anesthesia is also
wholly owned by the PDC.
53. In late 2016 and early 2017, Dr. Sanders repeatedly represented to Dr. Shaughnessy that
he intended to hire Dr. Shaughnessy in 2017.
54. At all times relevant to this Complaint, Chair Mathew had veto power over the hiring of
doctors at Regional Anesthesia as well as power over faculty appointments.
55. On or about November 18, 2016, Dr. Shaughnessy was called into a meeting with Vice
Chair Martin and newly-designated Division Chief Gadsden to discuss Dr. Shaughnessy’s
transition to Regional Anesthesia. At this meeting, Vice Chair Martin informed Dr.
Shaughnessy that he was an “outstanding anesthesiologist” and that “[Dr. Shaughnessy] [was]
very bright” and thus could “read between the lines.” Dr. Shaughnessy was then admonished
that he should not be outspoken against Chair Mathew with regards to Dr. Jones, Chair
Mathew’s directives regarding communications to the resident applicants about the Resident,
or any other matter. Dr. Shaughnessy was told that Chair Mathew was very upset with him.
56. Moreover, in this meeting, Dr. Shaughnessy was informed by Vice Chair Martin that, in
response to Dr. Shaughnessy’s email inquiry about compensation and benefits during the
transition to Regional Anesthesia, Chair Mathew had decided he would refuse to provide Dr.
Shaughnessy with the gain share. Upon information and belief, Chair Mathew’s refusal to
17

provide the gain share was due to his displeasure with Dr. Shaughnessy’s recent complaints.
Vice Chair Martin also informed Dr. Shaughnessy that Chair Mathew had stipulated that he
would have to resign his faculty appointment in order to make the transition. Dr.
Shaughnessy complained to Vice Chair Martin and Division Chief Gadsden that these
requirements were unnecessary, not based on any established policy at Duke, and unfair to Dr.
Shaughnessy.
57. Dr. Shaughnessy was then told by Vice Chair Martin that if he caused further issues for
the Department, Dr. Shaughnessy could count on sabotaged letters of reference, punishment
through a diminution in his gain share to be paid in December 2016, and blacklisting at Duke
Regional as well as at the University of North Carolina (UNC) or the Durham Veteran’s
Affairs Medical Center (hereinafter “the VA”). Vice Chair Martin warned how “small of a
world” the anesthesiology business is in this area. Dr. Shaughnessy responded that he was
deeply concerned by these statements and that he felt they were directly retaliatory for
speaking up in the divisional meeting on October 19, 2016.
58. On or about December 9, 2016, Dr. Shaughnessy had a telephone conversation with
Division Chief Gadsden in which Dr. Shaughnessy requested fair treatment from him.
Division Chief Gadsden had recently attained the position of Division Chief and, because
Division Chief Gadsden been away at the October 19, 2016 meeting and had remained largely
silent during the November 18, 2016 meeting, Dr. Shaughnessy informed Division Chief
Gadsden of the comments and specific objections he had made to Chair Mathew about Chair
Mathew’s offensive characterizations of the Resident and Dr. Jones, as well as Dr. Aronson’s
behavior toward Dr. Jones. Division Chief Gadsden expressed that he held similar concerns
about Chair Mathew and Dr. Aronson, reminding Dr. Shaughnessy that, “Joe isn’t the Chair I
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came to work for” and that allowing Dr. Aronson to meet with Dr. Jones like that was akin to
“putting a bull in a china shop.” Division Chief Gadsden expressed his agreement with Dr.
Shaughnessy’s points about the Resident and Dr. Jones, but warned him that Chair Mathew
seemed “out to get him” and to “be careful.” The following evening, on December 10, 2016,
Dr. Shaughnessy attended the Divisional Holiday Party at Division Chief Gadsden’s
residence. At that party, Division Chief Gadsden warmly welcomed Dr. Shaughnessy, but
later privately told him to “watch your back, I think they are coming after you for what you
said.”
59. On or about January 6, 2017, Dr. Shaughnessy was called into a meeting with Chair
Mathew, Vice Chair Martin, and Division Chief Gadsden. In this meeting, Dr. Shaughnessy
was informed that his contract with Duke would not be renewed and they were providing the
180 days’ notice required under the terms of the faculty handbook. Chair Mathew stated that
Dr. Shaughnessy was “not a good fit” and that if Dr. Shaughnessy forced the Department to
provide the underlying reasons for his discharge, then Chair Mathew would not support Dr.
Shaughnessy’s candidacy for a position at Duke Regional. Chair Mathew conceded that Dr.
Shaughnessy was a great clinician.
60. Chair Mathew and Vice Chair Martin also informed Dr. Shaughnessy that they may
permit him to seek employment at UNC, but they did not have to do that, indicating that they
would not allow Dr. Shaughnessy to obtain a job at UNC unless he remained silent about the
decision not to renew his contract.
61. In this meeting, Vice Chair Martin told Dr. Shaughnessy that there was “no cause” for the
decision to not renew Dr. Shaughnessy and alleged that there does not have to be a reason to
decide not to renew his contract.
19

62. Dr. Shaughnessy was shocked by this abrupt decision and requested additional
information about the reasons for his discharge. Chair Mathew elaborated and stated that Dr.
Shaughnessy was “often unhappy” during his “presentation” and “interactions” with Chair
Mathew.
63. Chair Mathew also stated that he had heard primarily from Vice Chair Martin that Dr.
Shaughnessy was guilty of a “lack of professionalism” and was “not a good fit.” Chair
Mathew repeated that Dr. Shaughnessy “seemed unhappy to them”, and that he was reluctant
or unable to do certain cases, referring to the accommodations offered to Dr. Shaughnessy
regarding MRI cases. Chair Mathew stated that the feedback he received from Vice Chair
Martin encouraged him to make the decision to not renew Dr. Shaughnessy’s contract.
64. Chair Mathew then addressed Dr. Shaughnessy’s disability, stating that he knew Dr.
Shaughnessy had gone through “trials” in his life. Chair Mathew referenced the Resident’s
suicide as having been a significant event to Dr. Shaughnessy.
65. Chair Mathew then told Dr. Shaughnessy that he had seriously considered the decision to
fire him and compared the situation to that of Dr. Jones being forced out of the Department.
Referring to Dr. Jones’ situation, Chair Mathew stated that it was not as if he decided one day
that, “We need to get rid of Cheryl.”
66. Chair Mathew and Dr. Shaughnessy then discussed Dr. Shaughnessy’s transition to
Regional Anesthesia. Chair Mathew stated that he had the authority to “overrule” Regional
Anesthesia’s decision. Chair Mathew then threatened Dr. Shaughnessy, stating that if Dr.
Shaughnessy did not “create a divisive situation with the Department,” then Chair Mathew
would help him get the job. However, if Chair Mathew learned that Dr. Shaughnessy had
been “bad-mouthing” him, he would make sure he did not get the job. Dr. Shaughnessy
20

understood that these threats were directed against his earlier complaints on behalf of female
physicians and physicians with disabilities. Chair Mathew further admonished Dr.
Shaughnessy that he would be harmed professionally if he spoke to anyone outside of that
room about the nonrenewal of his contract or if Dr. Shaughnessy contacted an attorney.
67. On or about January 18, 2017, Dr. Shaughnessy met with Chair Mathew alone in order to
request that he reconsider his decision to not renew his employment contract. Dr.
Shaughnessy discussed his treatment for depression and that his personal struggles were well
known within the Department. Chair Mathew responded that Dr. Shaughnessy was being let
go for “less than optimum professionalism,” and that Dr. Shaughnessy’s previous actions
within the Department were regarded as “not being team-oriented,” referring to Dr.
Shaughnessy’s objections to the way in which Dr. Jones was treated and the response to the
Resident’s death. Chair Mathew then referenced Dr. Jones, stating that her “illness” was
driving her behavior, and that she had shown disrespect for authority and harmed the
Department. Chair Mathew reiterated that he had been hearing negative things from Vice
Chair Martin about Dr. Shaughnessy’s “professionalism.”
68. Dr. Shaughnessy then told Chair Mathew that it appeared that his termination was
because of his complaints about Dr. Jones and the response to the Resident’s death. Chair
Mathew denied this, stating that Dr. Shaughnessy, “did not seem happy.”
69. Chair Mathew also opined about his disagreement with the Americans with Disabilities
Act, complaining to Dr. Shaughnessy that the law was intended to assist people with physical
limitations access buildings and now it was being misused for “other purposes,” referring to
its application to psychological disabilities.
70. Chair Mathew then said Dr. Shaughnessy could resign to avoid the “spectre of
21

termination” like Dr. Jones, and others had done. Dr. Shaughnessy stated that he refused to
resign. Chair Mathew told Dr. Shaughnessy that he would reconsider the termination.
71. Chair Mathew also told Dr. Shaughnessy that he would not allow him to pursue
professional opportunities at the VA. Dr. Shaughnessy requested Chair Mathew’s support for
pursuing a position at the VA, but Chair Mathew refused, indicating that Duke cannot
“arbitrarily” allow Dr. Shaughnessy to go to the VA, and that it may harm Duke financially.
72. Similarly, Chair Mathew told Dr. Shaughnessy that Duke typically does not let its
physicians obtain employment with UNC. However, Chair Mathew communicated that
support for this position was contingent upon Dr. Shaughnessy’s silence surrounding the
reasoning for the decision not to renew his contract.
73. Several days later, Chair Mathew stated that his decision to terminate Dr. Shaughnessy’s
contract would stand.
74. On or about January 22, 2017, Dr. Shaughnessy contacted Dr. Ben Reese of the Duke
Office of Institutional Equity regarding his knowledge of a violation of Duke’s discrimination
and retaliation policies. An administrator from that office replied by email and referred Dr.
Shaughnessy to the Faculty Ombuds as an avenue of assistance.
75. Following a telephone conference with the Faculty Ombuds, on or about January 22,
2017, Dr. Shaughnessy officially appealed Chair Mathew’s non-renewal of his faculty
appointment within Duke’s internal grievance process under the Faculty Handbook.
76. On or about February 28, 2017, after receiving numerous emails, text messages, and
conversations expressing an intent to hire him, Dr. Shaughnessy was suddenly told by the
President of Regional Anesthesia, Dr. Edward Sanders, that he did not think a job was
available and he was concerned that Dr. Shaughnessy would not be a “good fit” at Duke
22

Regional based upon what was going on at Duke. Dr. Sanders admitted to having spoken with
Chair Mathew and Vice Chair Martin and others about Dr. Shaughnessy.
77. Upon information and belief, Duke by and through the actions of its agents, prevented
Regional Anesthesia from entering into a contract with Dr. Shaughnessy.
78. Upon information and belief, Duke’s agents prevented Regional Anesthesia’s contract
with Dr. Shaughnessy because of Dr. Shaughnessy’s objections to Chair Mathew’s disability
and sex discrimination, as described herein.
79. Because of Dr. Shaughnessy’s terminated contract with Duke, he was not permitted to
remain employed by PDC, could no longer be a doctor at Duke, and was denied his profit-
sharing bonus known as “gain share.”
80. Prior to Dr. Shaughnessy’s complaints about the Department’s conduct regarding the
Resident and Dr. Jones, Chair Mathew had renewed Dr. Shaughnessy’s contract with Duke on
July 1, 2014, July 1, 2015 and July 1, 2016.
81. Prior to Dr. Shaughnessy’s complaints about the Department’s conduct regarding the
Resident and Dr. Jones, Chair Mathew rendered a positive evaluation of Dr. Shaughnessy’s
job performance in May 2016, in addition to positive evaluations in 2014 and 2015.
82. Duke, by and through its decision to not renew Dr. Shaughnessy’s contract, breached
material terms in its contract with Dr. Shaughnessy, including that (1) his contract would be
renewed subject to satisfactory annual performance and programmatic needs; (2) that he
would be free from institutional censorship or discipline according to the promise of academic
freedom set forth in the DFH; and (3) by the failure to abide by the applicable procedure for
contract reappointment set forth in Appendix C of the DFH.
83. Because of the breach of contract, retaliation, and discrimination against Dr.
23

Shaughnessy, he has incurred lost wages, benefits, and has experienced emotional distress.
Moreover, his professional reputation has been greatly damaged.
84. On or about June 7, 2017, Dr. Shaughnessy filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (EEOC), Charge No. 433-2017-02262, alleging
that Duke had discriminated against him on the basis of disability and had retaliated against
his complaints of sex discrimination and disability discrimination.
85. As of June 30, 2017, Dr. Shaughnessy’s employment with Duke ended.
86. On or about February 26, 2018, the EEOC issued a Notice of Right to Sue (“NRTS”),
entitling Dr. Shaughnessy to bring this present action within ninety (90) days of receipt of the
NRTS.
87. Dr. Shaughnessy utilized the DFH’s internal grievance procedures to resolve the
wrongful termination and breach of contract. However, Duke denied Dr. Shaughnessy’s
grievances and failed to respond with appropriate remedial action.
FIRST CAUSE OF ACTION

Discrimination under the ADA & ADAAA
88. The foregoing allegations of this Complaint are incorporated by reference as if fully set
forth herein.
89. Plaintiff filed a timely charge with the EEOC alleging violations of the ADA and the
ADAAA by Duke. On or about February 26, 2018, the EEOC issued its NRTS entitling Dr.
Shaughnessy to bring suit on his claims under the ADA and ADAAA. All conditions
precedent to this lawsuit have been fulfilled.
90. At all times relevant herein, Dr. Shaughnessy was and is “disabled,” within the ADAAA
in that regarding his congenital heart block, depression, and rosacea, (1) Dr. Shaughnessy had
24

a physical or mental impairment that substantially limited one or more major life activities;
(2) Dr. Shaughnessy had a record of such impairment; and/or (3) Dr. Shaughnessy was
regarded as having such an impairment.
91. Duke regarded Dr. Shaughnessy’s disabilities as substantially limiting him in major life
activities of the operation of a major bodily function and discriminated against him as such in
violation of the ADA.
92. Duke discriminated against Dr. Shaughnessy by terminating his employment on the basis
of Dr. Shaughnessy’s disability, by blocking his future employment prospects, and refusing to
pay him the full amount of his gain share.
93. At the time of Dr. Shaughnessy’s discharge, he was performing his job at a level that met
his employer’s legitimate expectations.
94. The effect of these unlawful practices has been to deprive Plaintiff of equal employment
opportunities, and to otherwise adversely affect his employment status as an employee
because of his disability.
95. Duke had no legitimate non-discriminatory reason for its adverse employment action
against Dr. Shaughnessy.
96. Upon information and belief, the acts as alleged herein were committed against Dr.
Shaughnessy with malice or reckless indifference to the Dr. Shaughnessy’s protected rights.
SECOND CAUSE OF ACTION

Hostile Work Environment Based on Disability
97. Dr. Shaughnessy incorporates by reference the foregoing paragraphs as if fully set forth
herein.
98. 42 U.S.C. § 12112(a) provides that is an unlawful employment practice for an employer
25

to, “discriminate against a qualified individual with a disability because of the disability of
such individual in regard to . . . other terms, conditions, and privileges of employment.”
(2) Dr. Shaughnessy had a record of such impairments; and/or (3) Dr. Shaughnessy was
regarded as having such impairments.
100. Dr. Shaughnessy was subjected to unwelcome harassment based upon his disability.
101. The complained-of harassment was sufficiently pervasive or severe to alter the terms,
conditions, and privileges of his employment.
102. The foregoing harassment is attributable to and was caused by the acts of the employer,
Duke.
103. Duke has engaged in discriminatory practices with malice or reckless indifference to
Shaughnessy’s federally protected rights, thereby entitling him to punitive damages pursuant
to 42 U.S.C. § 1981a.
THIRD CAUSE OF ACTION

Retaliation in Violation of ADA & ADAAA
herein.
(2) Dr. Shaughnessy had a record of such impairments; and/or (3) Dr. Shaughnessy was
26

regarded as having such impairments.
106. Dr. Shaughnessy engaged in protected activity under the ADA and ADAAA by
complaining to Chair Mathew and others about the ongoing discrimination and harassment on
the basis of disability at Duke.
107. Following Dr. Shaughnessy’s protected activity, his employment contract was not
renewed by Duke, his employment opportunity at Duke Regional was eliminated by Duke,
and his gain share was reduced in December 2016, and eliminated for June 2017, in retaliation
against his protected activity.
108. The adverse employment action taken by Duke was because of, and in response to, Dr.
Shaughnessy’s complaints of harassment and discrimination on the basis of disability.
109. Duke’s actions have caused Dr. Shaughnessy to suffer mental and emotional distress,
entitling him to compensatory damages pursuant to 42 U.S.C. § 1981a.
110. Duke’s discriminatory conduct, in violation of ADA and ADAAA, has caused Plaintiff to
suffer loss of pay, benefits, and prestige.
111. Duke has engaged in discriminatory practices with malice or reckless indifference to Dr.
to 42 U.S.C. § 1981a.
FOURTH CAUSE OF ACTION

Retaliation in Violation of Title VII of the Civil Rights Act of 1964
herein.
113. Dr. Shaughnessy engaged in protected activity under 42 U.S.C. §2000e-3, by
complaining to Chair Mathew and others, as described herein, about the discrimination and
27

harassment on the basis of sex perpetrated against female physicians in Duke’s
Anesthesiology Department.
114. Following Dr. Shaughnessy’s protected activity, his employment contract was not
renewed by Duke, his employment opportunity at Duke Regional was eliminated by Duke,
and his gain share was reduced in December 2016, and eliminated for June 2017, in retaliation
against his protected activity.
115. The adverse employment actions taken by Duke was because of, and in response to, Dr.
Shaughnessy’s complaints of harassment and discrimination based on sex.
116. Duke’s actions have caused Dr. Shaughnessy to suffer mental and emotional distress,
entitling him to compensatory damages pursuant to 42 U.S.C. § 1981a.
117. Duke’s discriminatory conduct, in violation of Title VII, has caused Dr. Shaughnessy to
suffer loss of pay, benefits, and prestige.
118. Duke has engaged in discriminatory practices with malice or reckless indifference to Dr.
to 42 U.S.C. § 1981a.
FIFTH CAUSE OF ACTION

Wrongful Discharge in Violation of North Carolina Public Policy
forth herein.
120. Duke’s termination of Dr. Shaughnessy’s employment was for unlawful reasons and
purposes that contravene North Carolina public policy. Namely:
(a) Discrimination on the basis of disability as set forth in the NCPDPA, N.C. Gen. Stat
168A-1 et seq. Dr. Shaughnessy is protected under public policy against disability
28

discrimination in that he is a disabled individual. Dr. Shaughnessy (1) has an impairment
that significantly affects his ability to perform major life activities; (2) has a record of
such an impairment; and/or (3) was regarded by Duke as having such an impairment.
Duke discriminated against Dr. Shaughnessy in violation of public policy by terminating
him because he was a disabled individual, had a record of a disability, and/or was
regarded by Duke as disabled.
(b) Discrimination on the basis of disability as set forth in the North Carolina Equal
Employment Practices Act (“NCEEPA”), N.C. Gen. Stat. § 143-422.1, et seq. Dr.
Shaughnessy is protected under public policy against disability discrimination in that he
is a disabled individual. Dr. Shaughnessy (1) has an impairment that significantly affects
his ability to perform major life activities; (2) has a record of such an impairment; and/or
(3) was regarded by Duke as having such an impairment. Duke discriminated against Dr.
Shaughnessy in violation of public policy by terminating him because he was a disabled
individual, had a record of a disability, and/or was regarded by Duke as disabled.
121. Duke’s actions in discharging Dr. Shaughnessy were taken with malice or with reckless
indifference to Dr. Shaughnessy’s rights.
122. As a result of Dr. Shaughnessy’s wrongful discharge, he has suffered emotional distress,
economic damages, and damage to his reputation, inter alia.
123. Dr. Shaughnessy is entitled to back pay, front pay, compensatory and punitive damages,
and such other relief as the court shall deem proper.
29

SIXTH CAUSE OF ACTION
Breach of Contract
(Against Defendant Duke)
forth herein.
125. Dr. Shaughnessy had a binding and enforceable contract with Duke, as described herein.
126. Duke breached the terms of its contract with Dr. Shaughnessy, by and through the
following:
a. Dr. Shaughnessy’s contract represented a contract of employment terminable “for
cause.” Specifically, Duke maintained the right to terminate the continuing renewal of
his contract based upon unsatisfactory annual performance or programmatic needs.
Duke terminated the continuing renewal of Dr. Shaughnessy’s contract for “no
cause.” Accordingly, Duke has breached its contract with Dr. Shaughnessy;
b. Dr. Shaughnessy’s contract, which incorporated the DFH by reference, was not
renewed for a reason which violated Duke’s promise to Dr. Shaughnessy that he may
“act and . . . speak in his . . . capacity as a citizen without institutional censorship or
discipline.” Namely, Dr. Shaughnessy’s contract was not renewed because of his
objections to Chair Mathew’s treatment of people with disabilities and his response to
the Resident’s suicide; and
c. The decision not to reappoint Dr. Shaughnessy’s contract failed to abide by the
reappointment policy provided in Appendix C of the DFH, as described herein.
127. As a result of Duke’s breach of contract, Dr. Shaughnessy as incurred damages, as will be
proven at trial.
30

SEVENTH CAUSE OF ACTION
Tortious Interference with Prospective Economic Advantage
forth herein.
129. A prospective contract of employment existed between Dr. Shaughnessy and Regional
Anesthesia, PLLC.
130. Duke held a reasonable expectation that Dr. Shaughnessy would contract with Regional
Anesthesia, PLLC.
131. Duke, by and through the acts of Chair Mathew and Vice Chair Martin, intentionally
induced Regional Anesthesia PLLC not to contract with Dr. Shaughnessy.
132. By so doing, Duke acted with malice and without justification.
133. But for the interference of Duke, Regional Anesthesia, PLLC would have entered into a
contract with Dr. Shaughnessy.
134. Duke’s actions resulted in actual damages to Dr. Shaughnessy, as will be proven at trial.
EIGHTH CAUSE OF ACTION

Tortious Interference with Contract
(Against Defendant Duke)
forth herein.
136. A contract of employment existed between Dr. Shaughnessy and Defendant PDC.
137. Duke knew about the contract between Dr. Shaughnessy and Defendant PDC.
138. Duke, by and through the acts of Chair Mathew and Vice Chair Martin, intentionally
induced Defendant PDC not to perform its contract with Plaintiff.
139. By so doing, Duke acted with malice and without justification.
31

140. Duke’s actions resulted in actual damages to Dr. Shaughnessy, as will be proven at trial.
PRAYER FOR RELIEF
WHEREFORE, PLAINTIFF PRAYS:
1. That Plaintiff recover of Defendants compensatory damages in an amount to be
determined by the trier of fact;
2. That Plaintiff recovers punitive damages of the Defendants in an amount calculated to
punish Defendants and deter similar future conduct;
3. That Plaintiff recover from the Defendants reasonable costs and expenses, including
attorney fees, in bringing this action;
4. That all matters so triable be tried before a jury; and
5. For such other and further relief as to the Court seems just and proper.
This the 5th day of September, 2018.
Kornbluth Ginsberg Law Group, P.A.
/s/ Michael A. Kornbluth

Michael A. Kornbluth
N.C. Bar No. 27928
Email: mkornbluth@KGLawNC.com
Andrew J. Henson
N.C. State Bar No. 49266
Email: ahenson@KGLawNC.com
3100 Tower Blvd., Suite 800
Durham, NC 27707
Telephone: (919) 401-4100
Facsimile: (919) 401-4104
32

CERTIFICATE OF SERVICE
This is to certify that the undersigned has this date filed the foregoing Amended
Complaint with the Clerk of Court using the CM/ECF system which will send notification of
such filing to the following:
KIMBERLY JOYCE LEHMAN

OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.
4208 SIX FORKS ROAD, SUITE 1100
RALEIGH, NC 27609
919-789-3183
kimberly.lehman@ogletreedeakins.com
ROBERT A. SAR
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.
4208 SIX FORKS ROAD, SUITE 1100
RALEIGH, NC 27609
919-787-9700
Robert.Sar@ogletreedeakins.com
JOHN ANTHONY ZALOOM

MOORE & VAN ALLEN
P.O. Box 13706
RESEARCH TRIANGLE PARK, NC 27709
919-286-8182
johnzaloom@mvalaw.com
This the 5th day of September, 2018.
Kornbluth Ginsberg Law Group, P.A.
/s/ Michael A. Kornbluth

Michael A. Kornbluth
N.C. Bar No. 27928
Email: mkornbluth@KGLawNC.com
Andrew J. Henson
N.C. State Bar No. 49266
Email: ahenson@KGLawNC.com
3100 Tower Blvd., Suite 800
Durham, NC 27707
Telephone: (919) 401-4100
Facsimile: (919) 401-4104
33

Shaughnessy Amended Complaint

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Shaughnessy Amended Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Shaughnessy consistently earned high performance ratings and professional accolades

Shaughnessy’s engagement in protected activity, Duke refused to renew Dr. Shaughnessy’s

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 1 of 33

discrimination and retaliation perpetrated by Defendants in violation of the Americans with

with a disability under the ADA and ADAAA.

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 2 of 33

JURISDICTION AND VENUE

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 3 of 33

6. Dr. Shaughnessy is an anesthesiologist and physician licensed to practice medicine in the

Shaughnessy performed his residency in Anesthesiology at Massachusetts General Hospital

Dr. Shaughnessy’s Contracts with Duke

Letter”), offering Dr. Shaughnessy an appointment as a full-time faculty member in Duke’s

Professor, Track IV.

compensation, as well as a schedule of “Terms and Conditions” (hereinafter “Terms and

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 4 of 33

reference therein, established a number of material terms of Dr. Shaughnessy’s employment

a. Dr. Shaughnessy’s “Appointment Term” was described as follows: “Your

appointment will be renewed on a continuing annual basis, subject to satisfactory

annual performance and programmatic needs.” Accordingly, Duke offered Dr.

satisfactory annual performance or if Duke’s programmatic needs precluded the need

for Dr. Shaughnessy’s continued employment; and

Handbook (“DFH”), including any amendments thereto, was a material component of

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 5 of 33

Chair of the Department of Anesthesiology, acting as an authorized agent on behalf of Duke

in extending the aforementioned offer.

himself and Duke.

Shaughnessy’s proposed modifications amended the following:

paragraph, numbered by Dr. Shaughnessy as paragraph nine, to clarify that the

non-compete agreement required by the Terms & Conditions Schedule would be

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 6 of 33

Duke throughout his period of employment.

duration of his employment with Duke.

programmatic needs such that it precluded Dr. Shaughnessy’s continued employment.

about June 30, 2017.

rank within the DFH.

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 7 of 33

by Duke and applicable to Dr. Shaughnessy include, inter alia:

citizen without institutional censorship or discipline”; and

establishment of an objective criteria for reviewing Dr. Shaughnessy’s candidacy for

reappointment (i.e., the rubric by which satisfactory performance would be

(3) review of Dr. Shaughnessy’s performance against the aforementioned criteria by a

vote except in the case of a tie; inter alia.

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 8 of 33

described in Paragraph 21.

be provided to Duke faculty as stated therein.

commitment to provide academic freedom to Duke faculty and to due process in

reappointment decisions described in Paragraph 21.

Dr. Shaughnessy’s Performance and Accomplishments at Duke

record of performance in his provision of care to patients and developed an excellent

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 9 of 33

elevated levels of responsibility. Up until December 2016, Dr. Shaughnessy’s performance

had been semi-annually rewarded by the payment of substantial profit-sharing bonuses

(known as “gain share”) distributed to him through PDC.

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 10 of 33

Shaughnessy reinforced written notification of this accommodation numerous times between

Joseph Mathew (male, no known disability) (hereinafter “Chair Mathew”), in addition to

Shaughnessy was regarded by the foregoing as having a disability.

Case 1:18-cv-00461-CCE-JEP Document 19 Filed 09/05/18 Page 11 of 33

depression. In September 2015, a female employee was assaulted by a male at Duke

would be forced out of Duke by Chair Mathew.

of depression during her stressful second year of residency.

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